Preface:UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (2003) was adopted by the General Conference of UNESCO, Paris, 29 Sep-17 Oct.

This note considers the impact of the ICTY jurisprudence and the 2003 UNESCO Declaration upon two discernible trends in the international law concerning cultural heritage. First, the dissolving of the divide between the protection afforded during period of armed conflict and peacetime. Second, the recognition of the importance of cultural heritage to subjects beyond the State in which it may be located: namely, humanity generally (including future generations), and non-state groups. These trends are complementary and reflect the increasing significance of the protection and promotion of cultural diversity in international law. Yet, they are also being met with significant trepidation by States, as exemplified by their reluctance to create new legal obligations with the 2003 UNESCO Declaration. Nonetheless, the events which triggered these developments highlight that the stakes are significant because the consequences of such acts are often irreversible.

While customary international law on the prohibition against intentional destruction of cultural heritage during peacetime is not as clearly defined as the prohibition during armed conflict, it can be inferred on three premises. First, there is the developing State practice of condemnation of deliberate acts of destruction of significant cultural heritage. This is bolstered by increasing number of signatories to the instruments for the protection of cultural heritage during peacetime. As at 7 January 2005, the World Heritage Convention had 179 State parties and its List had 788 properties inscribed on it.The 1970 UNESCO Convention had 106 State parties including the countries which host the major centres of the international art trade. Federico Lenzerini notes that this trend is augmented by the domestic legislative protection afforded cultural heritage by most States, even those not State parties to these instruments. However, given the views of UNESCO Member States in the lead up to the 2003 UNESCO Declaration, Roger O’Keefe warns against discounting the ongoing importance of the principle of non-intervention and State sovereignty in international law. Whilst O’Keefe’s point explains its ‘soft law’ language, its very adoption suggests a slow movement toward curbing the unfettered sovereignty of States in this area.

Second, Lenzerini observes that it would be illogical to provide greater protection during period of armed conflict than peacetime. The advisory opinion of the International Court of Justice in the Legality of the Threat or Use of Nuclear Weapons (1996) is instructive in this respect.38 Implicit in the Court’s reasoning is the understanding that the existinginternational law for the protection of the environment during peacetime is applicable during armed conflict subject to certain provisos, including military necessity. That is, protection provided by international law during peacetime is necessarily greater than that applicable during armed conflict. It is suggested similar reasoning can be extrapolated to cover the prohibition on the intentional destruction of cultural heritage.

Third, the recent decisions of the ICTY widening the protection afforded to cultural heritage in international law in war and peacetime may signal an evolution mirroring that which occurred in respect of crimes against humanity and genocide. There is a growing recognition that while destruction or damage of cultural property often occurs under the cloak of armed conflict, it is not confined to nor is it necessarily related to the hostilities. As noted previously, it is this awareness that drove the adoption of 2003 UNESCO Declaration. Furthermore, as explained below, international criminal law is increasingly prohibiting the intentional destruction of cultural heritage during periods of peacetime when it has been targeted because of its affiliation to a particular ethnic or religious group

Certain episodes of intentional destruction of cultural heritage, like the 1991 bombardment of Dubrovnik and the 2001 destruction of the Bamiyan Buddhas, have spurred intense international public outcry. Not only do the various international responses to these incidents reflect a growing commitment to prohibit them and hold the perpetrators to account. They also highlight an underlying awareness that these acts undermine the contribution of peoples to the ‘cultural heritage of all mankind’ and their enjoyment of human rights.
It is this heightened emphasis on cultural diversity which has led the international community to tentatively address the twin issues of the differentiated protection of cultural heritage during armed conflict (international and non-international) and peacetime, and the interests of non-state groups in international law. Yet, as the language of the substantive paragraphs of the 2003 UNESCO Declaration and the ICTY’s reappraisal of the currently accepted definition of genocide expose, various States are taking these steps reticently and reluctantly. Nonetheless, they are steps which must be taken if the irretrievable disappearance of threatened cultural heritage is to be prevented in the future.

The Declaration addresses intentional destruction of cultural heritage including cultural heritage linked to a natural site.

It states should take all appropriate measures to prevent, avoid, stop and suppress acts of intentional destruction of cultural heritage, wherever such heritage is located.

It states should adopt the appropriate legislative, administrative, educational and technical measures, within the framework of their economic resources, to protect cultural heritage and should revise them periodically with a view to adapting them to the evolution of national and international cultural heritage protection standards.

It states should endeavor, by all appropriate means, to ensure respect for cultural heritage in society, particularly through educational, awareness-raising and information programmes.

Underwater Cultural Heritage on 2 November 2001 by the 31st General Conference of UNESCO, which entered into force three months after the deposit of the twentieth instrument of ratification, acceptance, approval or accession, on 2 January 2009.

The European Landscape Convention of the Council of Europe promotes the protection, management and planning of European landscapes and organizes European co-operation on landscape issues. http://www.coe.int/en/web/landscape

European Landscape Convention: guidelines for managing landscapes

Integrating the European Landscape Convention into plans, policies and strategies. This information helps government departments, agencies, local government and other organizations to protect and manage landscapes better.

Report of the Suzhou (China) Conference – “International Conference for the Mayors of Historic Cities in China and the European Union”. April 1998. Information document prepared for the World Heritage Committee, Kyoto, 30 November – 5 December, 1998. WHC-98/CONF.203/INF.12, UNESCO.

The Government is concerned to preserve and revive the historic, cultural and architectural heritage of the Territory. An important step towards this end was the creation of the Cultural Institute of Macau which, combining as it does the sectors of cultural heritage, cultural activities and training and research, will seek to coordinate activities in the cultural field.

Defence of the architectural, environmental and cultural heritage (Decree 83/92/M, 31st December 1992)

The preservation of Macau’s monumental, architectonic, urban and cultural heritage is based on the defence of its historic and cultural values, which is, still today, a unique witness, amongst the regions of Southeast Asia and the World.

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